Employer found liable for injuries to worker due to in-house modifications performed on machinery Employer found liable for injuries to worker due to in-house modifications performed on machinery

Employer found liable for injuries to worker due to in-house modifications performed on machinery

10 March 2021 | Employment and Safety

The New South Wales Court of Appeal recently found an employer defendant to be liable as a result of in-house modifications it undertook on machinery in circumstances where adequate engineering advice had not been first obtained. 

In Issue

  • The case considered an employer’s duty to provide workers with a safe place and system of work so as to avoid foreseeable risks of injury.

The background

The appellant was employed as an underground coal miner at the Whitehaven Colliery.

During the course of his employment in June 2011, the appellant injured his shoulder when he slipped while climbing down from the top of a load haul dump machine (LHD). The employer had modified the LHD which made it necessary for the appellant to climb onto the roof of the LHD to close the cover after refuelling the machine. Prior to the modifications, this could be performed from ground level. On the day of the incident, it was confirmed that the top of the LHD was also wet with diesel and water spillage, causing the appellant to slip and lose balance, falling on his left shoulder. As a result of the incident, the appellant suffered a traumatic partial rotator cuff tear.

The appellant commenced proceedings in the Supreme Court of New South Wales alleging that the employer had breached its duty of care.

The decision at trial

The trial judge, Wright J, considered the following issues (1) whether the employer had breached its duty to provide a safe place of work to the appellant and (2) whether the appellant was contributorily negligent. Wright J found as follows:

  1. Although working on top of the LHD presented a risk of injury to the appellant, and the descending from the LHD was a risk reasonably foreseeable, there was no failure by the employer to eliminate the risks given it had implemented sufficient hand railings and points of contact; and
  2. That the appellant failed to take reasonable care for his own safety and was contributorily negligent to the extent of 30%.

The issues on appeal

The issues on appeal were refined to determining whether the trial judge had erred in only focussing on the issue of whether the employer had discharged its duty of care in eliminating the risk associated with the modifications made to the LHD, rather than also considering whether the modifications created an unnecessary risk.

The decision on appeal

The court noted that at trial, there was no evidence led by the employer as to why it was decided that modifications to the engine cover of the LHD were performed in-house, rather than it being sent back to the manufacturer. There was also no evidence led by the employer to indicate that they had consulted with specialist engineers prior to it being determined that the modifications were correct and necessary.

The court found that the employer should not have carried out the modifications to the LHD given it was inherently unsafe to have workers climb on top of the machine in conditions that may be slippery and greasy. It was also determined that when disembarking from the LHD, it was difficult for workers to maintain three points of contact as they had been directed to do. The court made note that the employer had decided to make the modification rather than having the LHD returned to the manufacturer for repairs, for which no explanation as to why this was done was provided.

With respect to the trial judge’s findings that the employer had implemented adequate controls to mitigate against the risk of injury, the court disagreed, determining that:

  • Although workers were now required to climb on top of the LHD, no additional handholds or steps had been added during the modification process in order to assist workers when disembarking; and
  • The manoeuvre which the appellant was tasked with was akin to lowering himself down a cliff, rather than a simple manoeuvre of stepping down a ladder using handrails.

Having regard to the above points, the court also overturned the primary judge’s finding of contributory negligence. It was determined that the appellant had not acted carelessly given that he was only performing his role within a system of work which had failed to provide adequate safeguards.

The appeal was allowed, and the matter remitted back to the primary judge.

Implications for you

The decision highlights the high burden on employers in order to establish that they have satisfied the duty of care they owe to employees.

Update 4/3: The High Court of Australia refused an application for special leave to appeal by the employer, Whitehaven Mining.  


Davies v Whitehaven Coal Mining Limited [2020] NSWCA 219

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George Rafter

George Rafter

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